If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

- 1

- 

### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

UNPUBLISHED

In re S B Coleman

- Gates, Minor. April 25, 2019

No. 345642 Wayne Circuit Court Family Division

LC No. 18

- 000548

- NA

Before: M ARKEY

, P .J., and F ORT H OOD and G ADOLA , JJ.

P ER C URIAM

.

R espondent

- mother appeals as of right the trial court’s order terminating her parental rights to her daughter, SCG, under MCL 712A.19b(3)(f) ( failure to support or communicate with

the child for two or more years). We affirm

.

The present proceedings were initiated when petitioner, SCG’s court

- appointed guardian

, who began caring for SCG shortly after her birth, filed a petition seeking permanent custody of

and the trial court’s consent to adopt SCG . The petition sought termination of respondent’s and the putative father ’s parental rights under MCL 712A.19b(3)(f) , alleging that SCG’s parents

, despite having the ability to do so and without good cause, failed or neglected to provide regular

and subst antial support for

, or to visit, contact, or communicate with SCG for two years or more before the filing of the petition.

Although attempts to serv e respondent with the summons and petition were initially unsuccessful, respondent was formally served when she appeared without counsel on June 19, 2018, at a pretrial hearing before the referee

. A copy of the summons served on respondent provided :

As a respondent you have the right to be represented by an attorney. If you want an attorney, you should hire o ne immediately so the attorney will be ready on the hearing date. If you want an attorney but are not financially able to hire an attorney, you should contact the court immediately about a court appointed
attorney.

During the hearing, t he referee indicate d on the record that respondent informed the court of her intent to voluntarily release her parental rights and consent to petitioner’s adoption of SCG:- 2

- The Referee : All right. We had an off

- the

- record discussion in the presence of your daughter’s legal counsel, and you stated that you wished to voluntarily release your parental rights, consenting to this adoption; is that

correct?

Respondent : Yes.

The Referee : All right. So what’s going to happen, we said this off the

record but I want the record to r eflect, and you can correct me if I miss anything, that after this hearing you’re going to report to the adoption unit

. . . . We’ll give you the room number , and they will prepare the paperwork for you to consent to this. And you can come back, if we can take care of it today we will, depending on the time. And if not, we’ll give you another date. But you want to do it before the August 1 st bench trial date, correct?

Respondent : Yes.

Respondent further testified that SCG’s putative father was deceased and that neither he nor any

other man had ever c o me forward to establish paternity for SCG.

The referee stated that, assuming respondent released her parental rights, petitioner would nevertheless be require d to proceed to trial regarding any putative father’s parental rights

. Accordingly, the referee stated that the trial court would publish notice for any unknown father. Further, the referee asked petitioner whether she intended to retain counsel or seek court

appointed counsel, for which fees would be waived if her income fell below a certain level. Petitioner waived her right to counsel. The referee did not likewise inform respondent on the

record of her right to counsel. On the record, the referee scheduled a bench trial to begin on

A

ugust 1, 2018.

On the date of the bench trial, only petitioner and SCG’s counsel appeared. Respondent was not present, and the referee noted that she had not completed the paperwork releasing her parental rights to SCG

. The referee also noted that no pu tative father appeared, although notice

of the bench trial was published. Petitioner testified during the bench trial that she continuously

cared for SCG beginning shortly after SCG was released from the hospital following her birth. Although respondent had petitioner’s home address and telephone number, petitioner testified that respondent neither supported nor visited or otherwise communicated with SCG over the past

two years. Based on petitioner’s uncontroverted testimony, the referee stated that she would

recomm end to the trial court that termination of respondent ’s and the unknown f ather ’s parental rights was in SCG’s best interests

. Consistent with this recommendation, the trial court entered an order terminating respondent’s and the unknown father ’s parental rights to SCG for the purpose of adoption by petitioner.

The sole issue presented by respondent on appeal is whether she was deprived of her statutory and constitutional right to be represented by counsel through the course of the termination proceedings . Specifically, respondent asserts that the trial court failed to inform her

of her right to counsel, including court

- appointed counsel, which amounts to plain error requiring

reversal

. We disagree

.- 3

- This Court typically reviews de novo the constitutional question whether a trial court infringed upon a party’s right to due process. In re Rood , 483 Mich 73, 91; 763 NW2d 587 (2009). However, because respondent did not raise the issue of her right to counse l before the trial court, this issue is unpreserved. See In re TK , 306 Mich App 698, 703; 859 NW2d 208 (2014). We review unpreserved c laims of constitutional error for plain error affecting substantial rights. In re Williams , 286 Mich App 253, 274; 779 NW2d 286 (2009), citing People v Carines

, 460 Mich 750, 763

- 764; 597 NW2d 130 (1999). An error is plain when it is clear or obvious,

and it affects substantial rights when it “affected the outcome of the lower court proceedings.”

Carines , 460 Mich at 763

. Reversal is warranted when a plain error seriously affected the fundamental fairness or integrity of the proceedings. Williams , 286 Mich App at 278.

This Court has recognized that “ the United States Constitution guarantees a right to

counsel in parent al rights termination cases,” and further that “the constitutional right of due process confers on indigent parents the right to appointed counsel at hearings that may involve the termination of their parental rights

. ” Id . at 275

- 276

. I n Michigan, the ri ght to counsel in termination proceedings is protected both by statute and by court rule. See MCL 712 A.17c(4) and (5); MCR 3.915(B)(1). Specifically, MCL 712A.17c provides, in relevant part:

(4) In a [child

- protective] proceeding

. . . , the court shall advise t he respondent at the respondent’ s first court appearance of all of the following:

(a) The right to an attorney at each stage of the proceeding.

(b) The right to a court

- appointed attorney if the respondent is financially unable to employ an at torney.

(c) If the respondent is not represented by an attorney, the right to request

and receive a court

- appointed attorney at a later proceeding.

(5) If it appears to the court in a [child

- protective] proceeding

. . . that the respondent wants an att orney and is financially unable to retain an attorney, the court shall appoint an attorney to represent the respondent. [ ( Emphasis added ) .]

The substance of MCR 3.915(B)(1) is largely identical. Additionally, both MCL 712A.17c(6) and MCR 3.915(B)(1)(c) r ecognize that a respondent may waive his or her right to the assistance of an attorney , unless the respondent is a minor whose parent or guardian ad litem objects

.

The record in the present case demonstrates that the summons served on respondent during he r first court appearance properly provided notice of her right to be represented by an attorney, as well as her right to a court

- appointed attorney if she w as financially unable to hire

her own

. Thus, the trial court discharged its obligation under MCL 71 2A.17c(4) and MCR 3.915(B)(1) to advise respondent of her right to an attorney. A parent seeking court

- appointed

counsel has “some minimum responsibility” to avail herself of that opportunity by taking

affirmative action. In re Hall , 188 Mich App 217, 22 2; 469 NW2d 56 (1991) (quotation marks omitted)

. There is no indication in the record that respondent ever requested a court

- appointed
attorney or expressed a n intention to retain an attorney. Nor does r espondent allege on appeal that she took any affirmative steps in order to secure legal representation. To the contrary, respondent confirmed on the record that she wished to voluntarily release her parental rights to- 4

- SCG and consent to the adoption. Consistent with her stated intent, respondent di d not attend the

bench trial or otherwise make any effort to oppose the termination of her parental rights

, although she was aware of the date the bench trial was to occur

. Although respondent did not follow through with the execution of paperwork releasi ng her parental rights, this inaction may

be construed as abandonment of the proceedings when viewed in context of her failure to appear

for the bench trial. Respondent’ s clear lack of desire to be represented by counsel, or even to pursue custody, evince s that s he waived her right to counsel under MCL 712A.17c(6) and MCR 3.915(B)(1)(c)

. We therefore conclude that the trial court did not plainly err, as it properly informed respondent of her right to an attorney, which she thereafter waived.

Affirmed.

/ s/ Jane E. Markey

/s/ Karen M. Fort Hood

/s/ Michael F. Gadola